Reference Case Studies on Application of Transfer Pricing Taxation

Transcription

1 Supplement Reference Case Studies on Application of Transfer Pricing Taxation This document is a translation of the original Japanese-language Case Studies. The Japanese original is the official text. 1

2 Points to Note This supplement describes the treatment for transfer pricing taxation purposes of a number of cases meeting certain preconditions. The aim is to illustrate the key points to take into consideration when applying the Commissioner s Directive on the Operation of Transfer Pricing (Administrative Guidelines). The cases are grouped into three sections: The cases in Section 1 illustrate selecting the method of calculation of arm s length price; those in Section 2 illustrate points to note when applying the method of calculation of arm s length price; while those in Section 3 provide examples of advance pricing arrangement. Drawing on past cases of transfer pricing taxation and advance pricing arrangement (APA), these cases were chosen on the basis of their meeting certain preconditions in order to illustrate the important points when applying the Commissioner s Directive on the Operation of Transfer Pricing. Thus, there are also other cases which, though similar, are based on different preconditions, and their treatment for the purposes of transfer pricing taxation will also differ as a result. When conducting transfer pricing examinations and APA evaluations in practice, therefore, attention shall be paid to the following: 1) Determining whether a particular case presents any difficulties from the point of view of transfer pricing taxation. 2) Selecting and applying the most appropriate method of calculation of arm s length price by correctly ascertaining the particular circumstances of the foreign-related transactions in each individual case, based on the provisions of 1-2 (Basic Policies), 2-1 (Examination Policies), 5-1 (APA Policies) and other relevant provisions of the Commissioner s Directive on the Operation of Transfer Pricing. 3) Consulting the other cases contained in this supplement, in addition to 1) and 2). 2

3 Definitions The terms used in this supplement are defined as prescribed in Definitions 1-1, the Commissioner s Directive on the Operation of Transfer Pricing, and additionally as prescribed below: 1. Administrative Guidelines: Commissioner s Directive on the Operation of Transfer Pricing (Administrative Guidelines) issued on June 1, [Document ID: Large Enterprise Examination Division 7-1, etc.] 2. Internal comparable transaction: A comparable transaction except an external comparable transaction. 3. External comparable transaction: A comparable transaction between parties which have no special relations prescribed in Article 66-4(1) of the ASMT with a company or the foreign-related party. 4. Comparable PS method: The method listed in Item 1(a) of Article 39-12(8) of the Order for Enforcement of the ASMT, among the profit split methods. 5. Contribution PS method: The method listed in Item 1(b) of Article 39-12(8) of the Order for Enforcement of the ASMT, among the profit split methods. 6. Residual profits: Residual profits prescribed in Item 1(c-2) of Article 39-12(8) of the Order for enforcement of the ASMT. 7. Splitting factor: A factor to be used for allocation of profits to be split or residual profits 8. Routine transaction: A transaction listed in ASMT Directive 66-4(3)-1(5) 3

4 Table of Contents Section 1. Cases concerning the selection of method of calculation of arm s length price Case 1 Case of use of comparable uncontrolled price method 6 Case 2 Case of use of resale price method 24 Case 3 Case of use of cost plus method 27 Case 4 Case of use of methods consistent with comparable uncontrolled price method 30 Case 5 Case of use of methods equivalent to methods consistent with cost plus method 36 Case 6 Case of use of transactional net margin method 40 Case 7 Case of use of contribution profit split method 49 Case 8 Case of use of residual profit split method 57 Case 9 Adjustment for differences 61 Section 2. Cases illustrating points to note concerning application of method of calculation of arm s length price (1) Cases illustrating treatment of intangible properties Case 10 Intangible properties created by R&D and marketing activities 64 Case 11 Intangible properties relating to distribution channels and quality control know-how 71 Case 12 Intangible properties such as know-how accumulated by enterprises through human resources business activities 73 Case 13 Contribution to creation, maintenance, and development of intangible properties 76 Case 14 Treatment in the case that a company only bears the cost of creation of intangible properties 78 Case 15 Intangible properties of a corporation used by employees on loan 80 (2) Cases illustrating general points to note when applying profit split method Case 16 Scope of application of profit split method in a series of foreign-related transactions 82 Case 17 Transactions that may be excluded from scope of profit split method 86 Case 18 Calculation of profits to be split 89 (3) Cases illustrating points to note when applying residual profit split method Case 19 Treatment of profits due to differences in labor costs 93 Case 20 Treatment of profits affected by market features and market fluctuations 96 Case 21 Calculation of routine profit 98 Case 22 Factors for splitting residual profits 100 4

5 (4) Other cases Case 23 Intra-group services 104 Case 24 Consideration of multiple years 111 Case 25 Contribution to foreign-related party 114 Case 26 Treatment of price adjustment 117 Section 3. Cases of advance pricing arrangement Case 27 Case of establishment of given range for target profit margin 121 Case 28 Critical assumptions 125 5

6 Section 1: Cases concerning the selection of method of calculation of arm s length price Case 1: Case of use of comparable uncontrolled price method Key point In this case, it was found that the CUP method was the most appropriate method of calculation of arm s length price. Preconditions [Schematic of business relations] [Japan] [Country X] Purchase of products A and B Japanese corporation P Sale of product A Foreignrelated party S Sale of product A Third parties (approx. 200) (Sale of products A and B) (Sale of product A) (Retailers) Sale of product B Third-party T Sale of product B Third parties (Sale of product B) (Agent) (Retailers) (Summary of business of corporation and foreign-related party) Japanese corporation P is a distributor of products A and B, and 10 years previously it established corporation S in country X as a subsidiary to distribute product A. (Summary of foreign-related transaction) Company P sells product A to company S, which then sells it to approximately 200 third-party retailers in country X. Company P has sold product B to third-party agent T in country X since company S s establishment, and company T then sells the product to retailers in country X. At company P, product B is classified as a different product (i.e. has a different model number) from product A, but the two are similar in terms of properties, structure, functions, etc. (Functions and activities of corporation and foreign-related party) The function performed by company P in the sale of product A to company S and the sale of product B to company T (hereinafter referred to as the two transactions ) is that of purchase of inventories of product A and product B, and the sale of these inventories to company S and company T. Company P engages in no unique activities, and there are no differences between the two transactions in function. In neither case is use made of trademarks or other such properties. 6

7 (Terms of contracts for sale of product A and product B) The two transactions are the same in transaction stage (e.g. retail or wholesale), and substantially the same in volume. The terms of the contracts for the two transactions (e.g., delivery terms, payment terms, product warranties, and the conditions for returns) are also, with the exception of the transaction price, the same. Treatment for transfer pricing taxation purposes (Consideration of comparability study) In calculating the arm s length price, selecting the most appropriate method of calculation for each case is required by the provisions of Article 66-4(2) of the ASMT, therefore a comprehensive study was made based on 66-4(2)-1, 66-4(3)-1, and 66-4(3)-3 of the Commissioner s Directive on the ASMT, the Administrative Guideline 3-1, etc. The result was as shown below: Both company P and company S perform sales functions and no significant difference is recognized between their levels. Therefore, it is deemed to be appropriate to adopt either of them as the tested party. A potential internal comparable transaction for application of the CUP method can be found within the transaction in which company P sells product B to company T. From openly accessible information, no potential external comparable transactions can be found. Product A and product B were found to be the same type of product in terms of properties, structure, and functions, despite being classified into different product categories at company P. No differences were found in the role and functions of P in the two transactions, and no use was made of intangible properties. The two transactions are substantially the same in the terms of contracts, and there were found to be no differences in the contract terms of the transactions. Both company S and company T are wholesale traders selling products to retailers in country X, so the two transactions are the same in transaction stage. They are also the same in volume, and there are no pricing regulations on either product A or product B. There were found to be no differences in company P s business strategies toward product A and product B. (Note) In applying the RP method, the CP method and the TNMM (including other methods consistent with, or equivalent to them), the profit level indicator of either of the parties of foreign-related transactions is to be verified. In these case studies, the party of foreign-related transaction subject to the relevant verification is called the tested party. (Selection of method of calculation of arm s length price) As a result of the above study, comparability in the application of the CUP method is fully recognized for the sales transactions of product B from company P to company B. Therefore, in this case, for the transactions of inventories of product A from company P to company S, 7

8 it is deemed adequate to select the CUP method which uses the price concerning the sales of product B from company P to company T as the most appropriate method, and to calculate the arm s length price. Explanation 1. The calculation of the arm s length price shall be done by selecting the most appropriate method to calculate the price to be paid by a foreign-related transaction among the statutory method of calculations (See Reference 1 of Explanation 3.), in consideration of the contents of the foreign-related transactions, the functions performed by the parties thereof, and other circumstances, assuming that the relevant foreign-related transaction is conducted in accordance with the ordinary transaction conditions between unrelated parties (Article 66-4(2) of the ASMT). Therefore, the basic concept in selecting the most appropriate method can be said to find the method the most consistent with the arm s length principle in accordance with the each status of foreign-related transaction. The contents of the arm s length principle are prescribed in Article 9-1 of OECD Model Tax Convention. The concept is to adjust the profits associated with the foreign-related transaction by referring to the transaction terms which would have been obtained in an uncontrolled transaction between unrelated parties. Note that it is essential to select the most appropriate method through the comparison and assessment on the terms concerning the foreign-related transaction and those concerning an uncontrolled transaction. (This is to examine the contents and terms of foreign-related transaction based on the factors which may affect the transaction terms between unrelated parties and, based on the result, to analyze the level of similarity (comparability) between the foreign-related transaction and uncontrolled transaction. In these case studies, this is called Comparability Analysis.) (Administrative Guidelines 3-1) In the comparability analysis, start with the search for selecting comparable transactions to examine whether comparable transactions exist or not. To conduct this search appropriately, it is necessary to fully understand the contents and terms of foreign-related transaction in advance, and to precisely seize the factors (factors listed in 66-4(3)-3 of the Commissioner s Directive on the ASMT) for comparison. It is important to fully examine beforehand the type of assets and the contents of services of the foreign-related transaction, and the functions performed by the party therein. (Reference) OECD MODEL TAX CONVENTION ARTICLE 9 1. Where a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly. 8

9 2. As stated above, in calculating the arm s length price, the most appropriate method to calculate the arm s length price shall be selected, in respecting the arm s length principle and in consideration of the contents of foreign-related transaction, functions performed by the parties of the relevant foreign-related transactions and other circumstances. The specific matters to be taken into consideration are as follows. In addition to the factors listed in 66-4(3)-3 of the Commissioner s Directive on the ASMT concerning foreign-related transactions and uncontrolled transactions, the following four factors are listed: (1) advantage and disadvantage of each method of calculation of arm s length price, (2) adequateness of each method of calculation to the contents of foreign-related transaction and the functions performed by the parties of relevant foreign-related transaction, (3) availability of necessary information to apply each method of calculation, (4) similarity between foreign-related transaction and transaction between unrelated parties (See Reference 2 of Explanation 3.) (66-4(2)-1 of the Commissioner s Directive on the ASMT). In selecting the method of calculation of arm s length price, in consideration of information relating to the foreign-related transaction and uncontrolled transactions and the above points (1) to (4), a comparability analysis shall be conducted on whether a method of calculation using a comparable transaction can be adopted, and if so, what type of uncontrolled transaction is appropriate as comparable transaction to select the most appropriated method under the procedure shown in Figure 1 below. 9

10 [Figure 1:Flow of selection of method of calculation of arm s length price (Example of comparability analysis)] Study of business lines of the corporation and foreign-related party Documents describing the capital relationship and the contents of business (Administrative Guidelines 2-4(1)) Study of lines and terms of foreign-related transaction Point to Examine (Administrative Guidelines 3-1 and Provisions 66-4(2)-1 of the Commissioner s Directive on the ASMT ) Type of assets, contents of services, etc., concerning the foreign-related transaction Functions performed by the corporation and the foreign-related party Contract terms concerning the foreign-related transaction Market situation concerning the foreign-related transaction Business strategies of the corporation and the foreign-related party Documents listed in the Article 22-10(1)-1 of the Regulations for Enforcement of the ASMT (Administrative Guidelines 2-4(2)) Documents listed in the Article 22-10(1)-2 of the Regulations for Enforcement of the ASMT (Administrative Guidelines 2-4(3)) Other documents (Administrative Guidelines 2-4(4)) Study of information source concerning the internal and external transactions between unrelated parties For an information source which exists outside, the type and contents, and the accuracy of available information shall be examined. Study of existence of potential comparable transactions SEARCH CONCERNING THE SELECTION OF COMPARABLE TRNASACTION In the case where there is no internal transaction with unrelated parties, examine based on the information source concerning an external transaction between unrelated parties. In the case where an information source concerning an internal transaction with unrelated parties and an available external transaction between unrelated parties exists, also examine it. Examine the RP method, the CP method, and the TNMM after determining which of the parties of foreign-related transaction is tested. (It is recommendable that a party which does not perform a complicated function should be tested.) Point to Note (66-4(2)-1 of the Commissioner s Directive on the ASMT) Advantage and disadvantage of each method of calculation Adequateness of each method of calculation to the contents of foreign-related transaction Availability of information necessary for the selection of comparable transaction Degree of similarity (comparability) between foreign-related transaction and uncontrolled transaction (Determine in consideration of the different factors listed in 66-4(3)-3 of the Commissioner s Directive on the ASMT.) If there are potential comparable transactions for the CUP method Where here are potential comparable transactions for the PR method, the CP method and the TNMM In the case where no potential comparable transactions exist (except for the comparable PS method), or the PS method is deeded adequate Study on the applicability of the CUP method Point to Note Comparability Study on the applicability of the RP method, the CP method and the TNMM Point to Note Comparability Study on the applicability of the PS method Point to Note Availability of information necessary for application of the PS method Comparability concerning the application of comparable PS method and the routine transaction of residual PS method Select the most appropriate method based on the results of the above study In the case where the comparability is sufficient for application of the traditional transaction method, select one of the traditional transaction methods. (If the comparability for application of the CUP method CUP method RP method or CP method TNMM PS method 10

11 3. The advantages of traditional transaction methods (especially that of the CUP method) is that they enable a direct calculation of arm s length price. Therefore, regarding the most appropriate method, as a result of study in consideration of the points listed in 66-4(2)-1 (1) to (4) of the Commissioner s Directive on the ASMT, if more than one potential comparables for the most appropriate method exists, select it as follows: in the case where the comparability is sufficient in applying the CUP method, the CUP method shall be selected based on such an advantage. (In the case where adjustment is necessary for the difference between the foreign-related transaction and the comparable transaction, the CUP method can be selected only when that adjustment is possible. The same shall apply in the following.) In the case where the CUP method cannot be selected, but the comparability in the application of the RP method or the CP method is sufficient, select the RP method or the CP method based on the similar advantage (Administrative Guidelines 3-2). Furthermore, even in the case where information necessary for determining whether a transaction falls under a comparable transaction for applying the traditional transaction methods or not cannot be obtained, if the availability of information based on the characteristics (advantage) of each method of calculation is taken into consideration, a method consistent with the traditional transaction methods listed in Article 66-4(2)-1(d) of the ASMT or other method provided for by the Cabinet Order (or a method equivalent to these methods) may be selected as the most appropriate method. Regarding methods consistent with the traditional transaction methods, see Note 3 below. Regarding other methods prescribed in the Cabinet Order of the ASMT, see Case 6 (TNMM), Case 7 (contribution PS method), and Case 8 (residual PS method). 11

12 (Reference 1) Methods of calculation of arm s length price Transactions other than inventory sales Inventory sales transactions transactions Traditional transaction methods: Methods equivalent to the traditional transaction 1. CUP method methods: (Article 66-4(2)-1(a) of the ASMT) 1. Methods equivalent to the CUP method 2. RP method (Article 66-4(2)-2 of the ASMT) (Article 66-4(2)-1(b) of the ASMT) 2. Methods equivalent to the RP method 3. CP method (Article 66-4(2)-2 of the ASMT) (Article 66-4(2)-1(c) of the ASMT) 3. Methods equivalent to the CP method Methods consistent with the traditional transaction methods: 1. Methods consistent with the CUP method (Article 66-4(2)-1(d) of the ASMT) 2. Methods consistent with the RP method (Article 66-4(2)-1(d) of the ASMT) 3. Methods consistent with the CP method (Article 66-4(2)-1(d) of the ASMT) Other methods prescribed in the Cabinet Order of the ASMT: 1. Comparable PS method (Article 39-12(8)-1 of the Cabinet Order of the ASMT, limited to the part pertaining to item (a) of said article) 2. Contribution PS method (Article 39-12(8)-1 of the Cabinet Order of the ASMT, limited to the part pertaining to item (b) of said article) 3. Residual PS method (Article 39-12(8)-1 of the Cabinet Order of the ASMT, limited to the part pertaining to item (c) of said article) 4. TNMM (Item through (2) to (5) of Article 39-12(8) of the Cabinet Order of the ASMT) 5. Methods consistent with those methods described above 1 through 4 (Article 39-12(8)-6 of the Cabinet Order of the ASMT) (Article 66-4(2)-2 of the ASMT) Methods equivalent to methods consistent with the traditional transaction methods: 1. Methods equivalent to methods consistent with the CUP method (Article 66-4(2)-2 of the ASMT) 2. Methods equivalent to methods consistent with the RP method (Article 66-4(2)-2 of the ASMT) 3. Methods equivalent to methods consistent with the CP method (Article 66-4(2)-2 of the ASMT) Methods equivalent to other methods prescribed by law: 1. Methods equivalent to the comparable PS method (Article 66-4(2)-2 of the ASMT) 2. Methods equivalent to the contribution PS method (Article 66-4(2)-2 of the ASMT) 3. Methods equivalent to the residual PS method (Article 66-4(2)-2 of the ASMT) 4. Methods equivalent to the TNMM (Article 66-4(2)-2 of the ASMT) 5. Methods equivalent to the 5th methods described in the left column (Article 66-4(2)-2 of the ASMT) (Reference 2) Explanation of the following four points within the items to be taken into consideration in selecting the most appropriate method (1) Advantage and disadvantage of each method of calculation (including an equivalent method in the following explanation) in calculation of arm s length price A Since the CUP method directly compares the price concerning the foreign-related transaction 12

13 and the comparable transaction, this is the most direct method for calculation of arm s length price. On the other hand, a strict similarity of types is required for the assets and the contents of services in its application. The differences of characters, structures, functions, etc. of assets often affect the price in an objectively clear manner, and it is generally difficult to adjust these differences. Also, the influence by the difference of functions performed by the party of transaction is not easy to adjust. Therefore, in applying the CUP method, no comparable transaction can be often found from openly accessible information (Openly accessible information means the corporate information such as Securities Report, database on which financial information of the corporation is recorded, and external information such as information from industry organizations. The same shall apply in the following cases.) B The RP method and the CP method compare the level of gross profit on sales concerning the foreign-related transaction and that of the comparable transaction. Taking into consideration the fact that the sales price is composed of the gross profit on sales and the costs, and that the gross profit on sales and the price are closely related, this may be the second most direct method to calculate the arm s length price, after the CUP method. On the other hand, the level of gross profit on sales is not easily affected by the difference of assets or services themselves, however, it is easily affected by the difference of functions performed by the parties of the transaction, and it is often impossible to find comparable transactions from openly accessible information. C The TNMM is a method that compares the level of operating profit concerning the foreign-related transaction and that of comparable transaction. Operating profit is not so closely related with price as gross profit on sales, therefore, calculation of arm s length price is relatively indirect when compared with the case of traditional transaction methods. On the other hand, the level of operating profit may be affected by the difference of functions performed by the parties of transactions. However, it is considered that the difference of functions performed in the conduct of business is reflected as the level difference of sales expenses and general administrative expenses generally expensed with the performing of functions (hereinafter referred to as the operating costs ), and that the operating profit level balances to a certain extent, even if there exists a substantial difference on the level of gross profit on sales. For this reason, adjustment may be unnecessary even if there is a difference of functions performed by the parties of transactions. Therefore, it can be said that the TNMM is not easily affected by the difference than the traditional transaction methods, and a comparable transaction can be more frequently found from openly accessible information. For this reason, it should be noted that, unless a difference which is recognized in objectively clear manner to affect the calculation of the ratio (the profit level indicator) provided for in Article 39-12(8)-2 to 5 of the Cabinet Order for Enforcement of the ASMT between the foreign-related transaction and the uncontrolled transaction, the relevant transaction between unrelated parties can be adopted as a comparable transaction in applying the TNMM. From the characteristics as described above, in the application of the TNMM, in the case where 13

14 the similarity of the functions performed by unrelated party in an enterprise-based business and the functions performed by the parties of the foreign-related transaction is high, and a difference of functions that is objectively clear to affect the calculation of profit level indicator is not recognized, the business may be deemed as a single transaction corresponding to the foreign-related transaction and it may be selected as a comparable transaction. Furthermore, there may be some factors (for example, difference concerning the efficiency of management) that may affect more strongly the level of operating profit than the levels of price and gross profit on sales. Therefore, this point shall be considered when examining the application of the TNMM. D The Profit Split (PS) method is a useful method in the case where a comparable transaction cannot be found. However, in the case where financial and other information necessary for the calculation of profits to be split or the identification of split factors is not available, the PS method is not applicable. There are three categories of the PS method: the comparable PS method, the contribution PS method, and the residual PS method. For each of them, characteristics other than above are described below: Comparable PS method: The comparable PS method is a method to calculate the arm s length price by allocating the profits to be split associated with the foreign-related transaction to the corporation and the foreign-related party, by using the profit allocation ratio corresponding to the profits to be split among the unrelated parties in the controlled transactions under a similar situation to the foreign-related transactions. Contribution PS method: The contribution PS method is a method to calculate the arm s length price by allocating the profits to be split associated with the foreign-related transaction to the parties of foreign-related transaction in accordance with the factors which are suited to estimate the extent of contribution to yield the profit. Since it is not necessary to find a comparable transaction between unrelated parties, the applicability of contribution PS method is higher than that of the comparable PS method in the case where foreign-related transactions are highly integrated. Residual PS method: The residual PS method is a method to calculate the arm s length price in the case where unique and valuable contribution by the both parties of foreign-related transaction is recognized in the foreign-related transaction with their performing of unique functions (for example, in the case where the both parties of foreign-related transaction are performing their unique functions by employing their intangible assets). Routine profits within the profits to be split are allocated to the both parties of foreign-related transaction. Then, the residual profits, which are the difference between the said profits and the sum of the allocated routine profits (the part which is generated by the unique and valuable contribution), are allocated to the both parties in accordance with the factors which are 14

15 suited to estimate the extent of contribution to yield the profits. In this method, the profits to be split are allocated in two stages by dividing the profits to be split into the routine profits and the residual profits. It may be sometimes difficult to measure the split factors associated with the residual profits. Furthermore, in the case where a party of the foreign-related transaction performs only simple functions, it is normally appropriate to select a method of calculation under which that party is tested, instead of the residual PS method. (2) Adequateness of each method of calculation to the contents of foreign-related transaction and the functions performed by the parties of the foreign-related transaction To select the most appropriate method, it is necessary to select a method of calculation which conforms to the contents of the foreign-related transaction and the functions performed by the parties thereof. For this reason, in the comparability analysis, each method of calculation (including equivalent methods in the following explanation) shall be examined in consideration of the following points. Furthermore, in the case where it is deemed reasonable to calculate the arm s length price by taking multiple transactions as one transaction (66-4(4)-1 of the Commissioner s Directive on the ASMT), it shall be noted that the method of calculation shall be examined in light of the reasonable transaction unit. A Regarding the CUP method, a similar type of assets or services concerning the transactions between unrelated parties to the assets or services of the foreign-related transaction shall be found. B In selecting a comparable transaction to apply the RP method, the CP method, and the TNMM, similarity of functions performed by the parties of foreign-related transaction is more important than the similarity of the assets or services. Also, in assessing the above three methods, it is necessary to determine which of the corporation and the foreign-related party is the tested party. From the viewpoint of finding a fully comparable transaction between unrelated parties, it is recommended that a party which is recognized to perform a simpler function shall be adopted as the tested party, based on the function analysis. Furthermore, since the TNMM has three profit indicators for its application (ratio provided for in Article 39-12(8)-2 of the Cabinet Order for Enforcement of the ASMT [operating margin on sales], ratio provided for in Article 39-12(8)-3 [operating margin on total costs] and the ratio provided for in Article 39-12(8) 4 and 5 [gross margin on operating costs]), it is necessary to examine which of the profit margins is adequate to use. C Regarding the PS method, in the case where the corporation and its foreign-related party acquire higher profit by having intangible properties than that of a corporation which conducts only routine activities in the foreign-related transaction, (See Treatment for transfer pricing taxation purpose of Case 8.) no comparable transaction can be obtained due to the individuality and uniqueness of the intangible properties, and it may be appropriate to allocate 15

16 the high profits to the corporation and its foreign-related party in accordance with the extent of contribution by the intangible properties. Also, in applying the PS method in the case where multiple parties are associated with the foreign-related transaction due to the chaining of transactions (See [Case 16].), it is necessary to adequately determine the scope of the parties to whom the profits to be split are allocated. (3) Availability of information necessary for application of each method of calculation Regarding the availability of information concerning the uncontrolled transactions necessary for application of each method of calculation, in the comparability analysis on internal and external information of the parties of foreign-related transactions, each method of calculation (including equivalent methods in the following explanation) shall be examined in consideration of the following points. Also, regarding the external information on the uncontrolled transactions, availability in accordance with each method of calculation is foreseeable as stated in (1) above. Therefore, in the comparability analysis, whether potential comparable transactions exist or not shall be examined efficiently based on the point. Furthermore, in the case where the RP method, the CP method, or the TNMM is selected as the most appropriate method, it shall be noted that financial information of the tested party concerning the foreign-related transaction is required. A Regarding the CUP method, whether information on a transaction between unrelated parties concerning the same type of assets or services as the assets or services of foreign-related transaction is available. Also, in the case where a difference which affects objectively in a clear manner the price is recognized between the transaction terms of the foreign-related transaction and those of the uncontrolled transactions, whether necessary information for adjustment of the difference of price caused thereby is available. B Regarding the RP method, the CP method, and the TNMM, whether information is available on the gross profits on sales or the operating profits in the relevant uncontrolled transaction by the unrelated party who performs a similar function to that of the tested party, among the uncontrolled transactions concerning the same or similar type of assets or services as that of the assets or services subject to the foreign-related transactions. Also, in the case where a difference which is objectively clear to affects the level of gross profits on sales or operating profits between the functions performed by the tested party and those performed by the unrelated party, whether necessary information is available for adjustment of the difference of levels of gross profits on sales or operating profits which were brought from the difference. C Regarding the PS method, whether financial information necessary for calculation of the profits to be split and for identification of the split factors is available (4) Extent of similarity between foreign-related transaction and uncontrolled transaction To select uncontrolled transactions as comparable transactions or transactions which are used to calculate the routine profits (routine transactions) in applying the residual PS method, the extent of similarity (comparability) of the transaction between unrelated parties and the foreign-related 16

17 party shall be sufficient (66-4(3)-1 of the Commissioner s Directive on the ASMT). For the compatibility, decision shall be made in consideration of the similarity of various factors listed in 66-4(3)-3 of the Commissioner s Directive on the ASMT (66-4(3)-3 of the Commissioner s Directive on the ASMT). Furthermore, in the case where a difference exists between the foreign-related transaction and the comparable transaction or the routine transaction, and where necessary adjustment shall be made on the difference of price generated by the difference, it shall be noted to conduct an appropriate adjustment based on Administrative Guidelines 3-3. (Reference 3) Methods consistent with the traditional transaction methods Methods consistent with the traditional transaction methods are considered to leave the way open to employing reasonable methods suited to the content of transactions provided that they do not diverge from the concept behind the traditional transaction methods. In the cases of foreign-related transactions for which comparable transactions cannot easily be found when applying the traditional transaction methods as prescribed by law, there are instances in which it is possible to select comparable transactions by using reasonable similar methods of calculation focusing on the various forms of these transactions, or in which the arm s length price can be calculated by adopting reasonable transactions as comparable transactions. As these methods allow a wider choice of comparable transactions than the traditional transaction methods, comparability therefore needs to be considered, bearing in mind the possibility of applying the methods consistent with the traditional transaction methods. It shall be noted that in the cases of methods consistent with the traditional transaction methods, there is no relaxation of the requirements for comparability required of comparable transactions when applying the traditional transaction methods (regarding the similarity of the factors prescribed in ASMT Directive 66-4(3)-3), and that transactions that do not meet these requirements cannot be used as comparable transactions when applying methods consistent with the traditional transaction methods either. Examples of methods consistent with the traditional transaction methods (1) In cases where actual uncontrolled transactions comparable with foreign-related transactions cannot be found: The calculation of the arm s length price based on objective and practical indicators, such as commodities exchange prices or other market prices. (2) In cases where the purchaser of inventories in a foreign-related transaction sold the inventories to an unrelated party via a party which has special relations (hereinafter, related party): The calculation firstly of the selling price from the buyer to the related party after deduction of normal profit when applying the RP method based on the price of inventories sold to an unrelated party, and then calculating the arm s length price for the foreign-related transaction on this basis. (3) In cases where the buyer of inventories in a foreign-related transaction manufactured a product or other goods using these inventories and sold them to an unrelated party: The calculation of the arm s length price after deducting the cost of manufacture of such products (excluding the 17

18 amount of consideration for inventories in the foreign-related transaction) and profit commensurate with the manufacturing functions of the products, in addition to the normal profit in the case of application of the RP method from the selling price of the products sold to the unrelated party. (4) In cases where a company s own products are sold as a set with products purchased from another company to a foreign-related party: The calculation of the arm s length price through parallel use of the CUP method or the CP method. (5) Method to calculate the arm s length price by using the average value of the price or the profit margin of those transactions, in the case where more than one transaction is comparable transactions in applying one of the traditional transaction methods (Note) In calculating the arm s length price in the case where more than one comparable transaction concerning the foreign-related transaction exists, and where the price or profit margin concerning the foreign-related transaction is outside of the specified range formed by the price or operating margin concerning the comparable transactions (in the case where adjustment is required for the difference between the foreign-related transaction and the comparable transactions, only after the adjustment), in principle, the mean of the prices or the operating margins concerning that range shall be used. However, in the case where another reasonable figure in accordance with the status of distribution of the prices or the operating margins concerning the relevant comparable transactions is recognized, the figure shall be used (Administrative Guidelines 3-5). 4. As stated above, in the comparable analysis, the search for selection of comparable transactions is done based on the result of study on the contents of foreign-related transaction. In general, whether internal comparable transactions or external comparable transactions exist or not shall be examined based on openly accessible information, in addition to the internal information such as transaction documents of the corporation or the foreign-related party. To select a comparable transaction, comprehensive study shall be made for each type of foreign-related transaction based on the Commissioner s Directive on the ASMT, provisions 66-4(3)-1 of (Meaning of the comparable transaction), Article 66-4(7)-2 (Handling of loans of tangible assets), Article 66-4(7) -4 (Handling of loan or borrowing of money), Article 66-4(7)-5 (Handling of provision of services), or Article 66-4(7)-6 (Handling of licensing of intangible assets). Furthermore, to determine the level of similarity (comparability) between the foreign-related transaction and the uncontrolled transaction, whether it falls under a comparable transaction or not, the similarity of various factors shown in 66-4(3)-3 (Various factors to be examined in selecting comparable transactions) of the Commissioner s Directive on the ASMT shall be taken into consideration. Also, in the case where the corporation or the foreign-related party has conducted a foreign-related transaction associated with the use of intangible assets, it is necessary to assess the comparability especially focusing on the intangible assets used by the seller or the buyer of 66-4(3)-3 (Note 1) of the Commissioner s Directive on the ASMT. In this case, in selecting a comparable transaction, it shall be noted to examine the similarity of type, scope, form of use, etc. of intangible assets (Administrative 18

19 Guidelines 3-4). Also, in the search concerning the selection of a comparable transaction, the decision on whether an internal comparable transaction falls under a comparable transaction seems relatively easy because the corporation or the related party thereof has information on the transaction. To select a comparable transaction, search shall be made by making ordinary efforts to obtain information in the normally possible scope. However, it shall be noted that there exists a certain restriction in the collection of necessary information, for example, there is no openly accessible information, or the information is held overseas. The procedures concerning the selection of comparable transactions are as shown in Figure 2 and Figure 3 below. (Reference) Screening of potential comparable transactions (Search of selection) In general, to select a comparable transaction, information is collected concerning the transactions between unrelated parties which are potential comparable transactions, taking into consideration the points shown in Figure 2, and screening is conducted. Furthermore, in the screening, the following procedure is adopted in general: the quantitative and qualitative criteria as shown in Figure 3 are specified in accordance with the situations of individual cases, and the transactions which do not conform to certain criteria are deemed insufficient in terms of comparability, and excluded from the potential comparable transactions. 19

20 [Figure 2:Points to be noted in the search of selection of comparable transaction (Ex.)] Documents used for Selection of Potential Comparable Transaction (Ex.) Comparable Transaction Potential Comparable Transaction Transaction documents of the corporation or foreign-related party (internal information) Business Information Database (external information) Information from Industrial organization, etc. (external information) Other information (external information) Information obtained from inquiry/examination on the companies of the same industry based on Article 66-4(8) of the ASMT (Example of factors to study on comparability) Whether it is a uncontrolled transaction Whether price data by appropriate transaction unit or data for calculation of operating margin is available Whether the method of calculation to be selected conforms to the contents of the foreign-related transaction, and whether the information can be used for its application Types of inventories, contents of services, etc. Whether the physical characteristics of inventory assets or characters of services concerning the foreign-related transaction is same or similar Functions performed by seller or buyer Risks borne by seller or buyer Intangible assets used by seller or buyer Whether there is difference in the functions of research and development, marketing, after-sales services, etc. performed by the seller or the buyer (The risk to be borne by the seller or the buyer, and the contents of intangible assets used in the transaction shall be noted.) Contract terms Whether there is difference of trading terms, settlement terms, return terms, contract modification terms, etc. Market situation Transaction stage, transaction scale, transaction period Influence of policies of the government Whether the markets in which transactions are conducted similar (Also consider whether it is a retail or wholesale transaction, a primary wholesale or a secondary wholesale transaction, whether there is difference of transaction scale or transaction period, whether there are policies of the government (Regulations on prices, etc.) that affect prices, operating margin, etc.) Business strategies of seller or buyer Other special situation Is there any difference of business strategies for market development, penetration policy, or the market entry timing of the seller and the buyer Whether there is any special situation (status of bankruptcy etc.) to make it non-approvable to be reasonably recognized as comparable 20

21 [Figure 3: Example of Screening of Potential Comparable Transactions] Potential Comparable Transactions Based on the industry category code of company information database, extract companies which possibly handle the same or similar type of inventory assets as the tested party, and which possibly have the similar functions as the tested party, and obtain their financial information. Exclusion based on the criteria of scales of sales, assets, number of employees, etc. Exclude the effects of difference of transaction scale, business scale, etc. Quantitative criteria Exclusion based on the criteria of ratios of research & development expenses, advertisement and promotion expenses, etc. to the sales Exclusion based on the criteria of ratio of export sales to the gross sales Exclude the effects of difference of functions and the possession of valuable intangible assets Exclude the effects of difference of sales market Exclusion based on the criteria of ratio of inventory assets held to the sales Exclude the effects of difference of the status of possession of inventories Exclusion based on the quantitative criteria Comparable transaction If it does not suit for the quantitative analysis, establish the following criteria, for example, Whether there is a difference in business strategies. Whether there is a difference of products it is dealing. Whether there is a difference of function to execute the business. 21

22 5. In calculation of the arm s length price based on the method of calculation selected as the most appropriate, there may be a case in which more than one transaction between unrelated parties with sufficient comparability (comparable transaction) and the arm s length price has a certain range. In such a case, if the price of the foreign-related transaction falls within that range, it is not subject to transfer pricing taxation (66-4(3)-4 of the Commissioner s Directive on the ASMT). On the other hand, as a factor to determine whether there exists a problem under the transfer pricing taxation, whether the margin ratio etc. concerning the foreign-related transaction falls within the range of margins associated with the transactions which are deemed to be potential comparable transactions may be examined (Administrative Guidelines 2-2(1)). The transactions which are considered to be potential comparable transactions are in the status before full screening. In consideration of the above, the range of margins specified in Administrative Guidelines 2-2(1) may have a considerable width. Therefore, in the search under the Administrative Guidelines 2-2(1), it shall be noted that the use of ranges by the quartile method may be appropriate, as necessary. (Note) In general, the range by the quartile method is a range composed of the first quartile and the third quartile of the total data. 6. Owing to the importance to be presented reasons of selecting the most appropriate method of calculation properly by the taxpayer, together with information concerning the grounds for determining the transaction prices to be considered and other ordinary transaction prices, and information on other matters including the functions performed by the counterpart foreign-related parties in transactions, it is necessary to draw taxpayers attention to the following points listed below. This is in order to ensure the smooth and proper administration of transfer pricing taxation, since it is concerned with the validity of the transaction price determined by a diversity of factors. (This applies to all the following cases as well.) Unless taxpayers, upon request from the tax authority, promptly present or submit the documents or copies prescribed in the Ordinance of the Ministry of Finance required to calculate the arm s length price, their cases will meet the conditions for application of estimated taxation (Article 66-4(6) and (8) of the ASMT, Item 1 of Article 22-10(1) of Ordinance for Enforcement of the ASMT). Taxpayers shall endeavor to acquire the books of account or copies kept by foreign-related parties as required by the tax authority to calculate the arm s length price in transfer pricing taxation examinations (Paragraph 7 of preceding article), and unless, upon request from the tax authority, they promptly present or submit the requested materials that are required to calculate arm s length price, the conditions for application of estimated taxation will be considered to have been met. When inspecting the documents set forth in Administrative Guidelines 2-4 that form the basis for final tax returns by taxpayers, and submission of necessary materials is requested, if the results produced by the methods of calculation of arm s length price employed by the taxpayer are not found to be the arm s length price, care shall be taken to fully explain to the taxpayer the reasons therefore and the details of the method of calculation of the arm s length price to be used instead based on the 22